An emerging storyline in this year’s election season is the increased implementation of voter ID laws around the country. From Wisconsin to Texas to Virginia, state legislatures are enacting new laws requiring voters to show some form of photo identification at the polls. Just as quickly, opponents are filing suit in both state and federal courts to challenge the laws on various grounds. While none of this is particularly novel, the added twist is the prominence of state constitutions in these disputes. In fact, given the current US Supreme Court’s narrow interpretation of voting protections, state constitutional recognition of the right to vote may have a tremendous impact in limiting some states from requiring voters to show identification this Election Day. Proponents of voter ID laws posit that they are necessary to protect the integrity of the election process. Those who oppose the laws, by contrast, explain that they do not root out any documented fraud and that they actually disenfranchise certain groups of voters, particularly minorities, the indigent and students. There is also a partisan bent to the disputes: Republicans tend to favor voter ID laws and Democrats oppose them because groups that more often vote Democratic are, as a general matter, less likely to possess the required form of identification and therefore will be unable to vote.
Predictably, many of these laws are subject to legal challenges soon after legislatures enact them. In 2006, the US Supreme Court held in Crawford v. Marion County Election Board that Indiana’s voter ID law — which was among the most stringent in the country at the time — passed constitutional muster as a general matter, and that it was unlawful only if there was actual evidence that the requirement deprived certain people from voting. Under this ruling, unless there is stark evidence of disparities, photo identification laws are valid under the US Constitution.
That still leaves open the potential that the laws violate federal statutory law or state constitutional provisions. Wisconsin recently passed a new voter ID law that is now the strictest in the country, requiring voters to show a particular form of ID either at the polls or to election officials by the Friday after the election. Groups such as the Advancement Project and the Americans Civil Liberties Union have filed suit, alleging that the new law violates the federal Voting Rights Act because of its asymmetric impact on racial minorities. In essence, the plaintiffs argue that racial minorities disproportionately do not possess the required identification or have the means to obtain one, so the law acts to disenfranchise these voters.